In the NY Times Magazine, "Ethicist" columnist Randy Cohen suggests that Prof. Henry Louis Gates would be warranted in filing a lawsuit.
"Yes, Gates should sue, and he does have grounds, and the topic is definitely worth the suit.
The gist of the problem is that an American’s fourth amendment right to freedom from government intrusion in the home is, in practice, limited by a patchwork of Supreme Court decisions that make it hard for police officers and citizens to have a clear idea as to what is acceptable and what is not acceptable during police stops, searches and home and car intrusions.
The result is that the police continually “push the envelope” of acceptable constitutional practice, especially because they know that there is no legal recourse in misdemeanor cases.
That is to say, no one is going to go the expense of a trial on a constitutional issue when they can plead to a misdemeanor or a violation and a fine. So in small cases, the police become accustomed to treating constitutional protections with a certain sloppiness. Gross invasions of our privacy are justified by “standard police procedures” which are supposedly based on the need to protect officers. The police know that we are never going to take a misdemeanor issue to trial, so they are going to get away with it.
In the Supreme Court case of Payton v. New York, 445 US 573 (1980), Justice Stevens was quite eloquent on the firm line that the constitution draws at the entrance to our homes: 1) even when there is probable cause that 2) we have committed a felony and are within a premises, 3) officers may not enter without a warrant. That’s the law, period.
Yet the law is routinely ignored in practice because the police claim a “consensual search” (which just means they didn’t ask, they just barged in and then claimed consent later).
There’s not a lot of precise law on the issue of what happens when someone shows up at the door of their home and gives a plausible explanation of their legal residence, along with a plausible explanation of the supposed “break-in”, but refuses further compliance with police requests to enter the home or to produce identification.
In America, if it hasn’t gone to the Supreme Court, it’s not law, so a lot of quite common situations are not covered by any clear federal law. The police exploit the legal vacuum.
However, as Justice Steven points out in Payton, the sanctity of the home is one of the bedrock principles on which the nation was founded. The 4th Amendment itself can be traced to the American disgust over the Customs Act, which permitted invasions of the home which revulsed Americans and led directly to the Boston Tea Party.
If freedom in America means anything at all, it means explaining to the policeman at the door that unless he produces a warrant he better stay on his side of the door unless he gets our express permission. It may seem extreme to be so intransigent with a well-meaning policeman, and we are not in fact required to be so intransigent, but the Constitution makes it our option, not the policeman’s.
Crowley failed to heed Gates constitutional rights at least twice — first, when he asked Gates to leave his home, and second, when he entered Gates home without requesting permission — and Gates would be doing us all a favor if he made that clear in court.
I should finally note that I do not believe that any of Crowley’s actions were motivated by racism. Moreover, it does seem that Gates acted with a certain racial hypersensitivity. However, from a constitutional point of view (if not from a social one), that’s all irrelevant.
The problem in this case isn’t racism, but it’s something just as bad, the creeping intrusiveness and impunity of police power in our daily lives."